PSR 110

CHAPTER 7:
TERMINATION OF LEGAL SUBJECTIVITY
LECTURE 1

Determination of the moment of death:

 Legal subjectivity of a natural person is terminated by death
 Medical evidence- person does not die in a single moment
 Description of death:
o Somatic death- brain permanently stops functioning
o Molecular death- body organs undergo irreversible changes
 SA Law: determination of legal subjectivity is through somatic death
 Court- rely on medical evidence for the moment of death
 National Tissue Act- permits the harvesting and use of human tissue and organs for
transplant purposes (no definition of death)
 National heath Act 61 of 2003- definition of death pertaining to act as somatic
death (court are not bound by this definition)
 Certain organs still function after the brain has stopped functioning for a period
(person is legally dead- organ transplant possible)
 Molecular death regarded as moment of death- organ transplant not possible
 Relevance in determining precise moment of death-
o Organ transplants
o Dissolution of marriage
o Payment of life insurance covers
o Law of succession (determined by executor/master of the high court)
o Person ceases to hold office
 Problematic areas in determination of death:
o More than one person dies in a natural disaster

Case:
S v Williams 1986 (SCA)

Basis:
Determination of moment of death being somatic death
 Facts:

The accused had a gun and broke into a lady’s house, the lady also had a gun in her
possession. The accused shot the lady in the neck before the lady had a chance to
shoot back. The lady was rushed to hospital and was put on life support. She was
presumed brain dead upon arrival. The family of the lady decided to take her off life
support.
The accused stated that the family had the final decision on the lady’s life, and as
such ended it themselves. He claimed he was not responsible for the murder as her
life had ended after the family decided t take her off life support.

Court Decision:

The SCA stated that according to SA law the determination of death is according to
somatic death (complete stopping of the brain functions) and as a result because
she was presumed brain dead upon arrival the accused was charged for the murder
and sentenced.

Commorientes:
 Commorientes: persons who die more or less simultaneously in the same disaster
(car accident, plane crash, earthquake)
 NB to determine order in which they died to establish law of succession to who can
inherit from one another
o Reason- a person can only inherit from another person if he/she is alive at
the time the estate falls open (time of other persons death)

Case:
Ex Parte Graham
Basis:
Principle of commorientes in law of succession
Facts:
Lady bequeathed her estate to her adopted son. She stipulated that if her son died before
her, the estate would devolve to her mother. Both the mother (testatrix) and her son die in
the same aeroplane crash. The executor (person who legally represents the deceased and
handles their estate) applied for a declaratory order that both the lady and the son died
simultaneously

Court Decision:
Court granted application for declaratory order that testatrix and son died simultaneously,
as such the estate was transferred to testatrix’s mother.

 Problem as to who died first:

Presumptions set out by English and Roman Dutch law
Presumptions not used in SA law as they are not in touch with reality (older
person died first automatically and the husband automatically survived his
wife)
 In SA:
Principle of commorientes is used (they died simultaneously) unless it can be
proved contrary through:
- Balance of probabilities
- Questions of fact (time of commorientes death)
 If there is no evidence, it is seen that they died at the same time (principle of
commorientes)
Case:
Greyling v Greyling
Basis:
Principle of commorientes within law of succession (illustrates basic principle of law of
succession: will should be interpreted according to the testators intention)
Facts:
Husband and wife died in a motorcar accident. The husband through medical evidence lived
a short while longer than the wife.
Court Decision:
Court held that it was the intention of the spouses that the word ‘simultaneous’ in their joint
will should be interpreted as them dying in the same disaster regardless of time difference
between their deaths
Proof of Death:
Death Certificates:
 Person’s death is proved by a death certificate
 Death by natural causes:
o Certificate obtained by medical practitioner- s.14 1(a) Birth and Death
Registration Act
o Certificate only issued if person is proven to be dead due to
 Doctor previously treating the patient s.15 (1)
 Doctor examined body of the deceased- s.15 (2)
o Certificate:
 Identity, cause of death, and certifies that person is dead
o Certificate cannot be obtained by medical practitioner:
 Deceased not treated by the doctor
 Medical doctor couldn’t examine the body
o In this instance:
 Person present at time of death, who knows of the death, person
arranging funeral gives the notification to the Director-General of
Home Affairs- s.14 1(b)
 Death by unnatural causes:
o Death suspected by unnatural causes an inquest is held
o Medical practitioner completes certificate only if they are convinced that the
body is not needed for judicial enquiry- s.17 (1)
o Cause of death is not stated on death certificate- s.17 (2)
o Death registered with Director-General of Home Affairs- s.14 (2) and s.17 (2)
o after such process an official death certificate is issued
o death certificate is prima facie- proof named person is dead
 LECTURE 2:
Direct evidence:
 medical practitioner cannot confirm death
 another person might have seen death or confirm death
o High court can be approached for an order certifying the persons death
o Evidence of person who saw death will be submitted to court in the form of
an affidavit

Presumption of death:
 no evidence that person is dead
 missing persons create uncertainty whether the person is alive or dead
 problems:
o missing person estate cannot be administered
o insurance policies/pension cannot be paid
o spouse/civil union partner cannot remarry
 inquest to a missing person:
o apply to court for order that missing person is presumed dead
o court issue only if evidence suggest an inference of death
 order for missing persons:
o the missing person is presumed to be dead until the contrary is proved
 TWO ways High Court can grant a presumption of death:
1. Common-law procedure
2. Statutory-law procedure (used as alternative to obtain presumption
of death for unnatural causes)
 Difference between the two- statutory procedure does not exclude the common law
procedure (party can at their own expense approach High court common-law
presumption of death- s18 (3) Inquest Act 58 1959)
Presumption of death-Common-law procedure:
Procedure to obtain presumption of death in terms of common-law
procedure:

 Person missing for a long period:

o Any party can apply to high court for presumption of death order granted
in terms of missing persons
o High court that has jurisdiction is that in which the missing person was
domiciled at the time of his disappearance – s.19 of Supreme Court Act
o Application is brought through notice of motion as well as an affidavit
 Notice of motion: notice used in application procedures, notice
given to high court and respondent, with the date, time and
division of high court, and address of applicant
 Affidavit: contain the facts on the basis of probabilities to grant
missing person presumption of death
o High court determine a return date where a final order is made
o Court grants a rule nisi- an interim order- based on the facts on the
presumption of death, the missing person is published in the government
gazette and newspaper
o Rule nisi- allows other interested parties to provide evidence to
strengthen the order of the presumption of death
o No objections lodged- court grants final order on return date of the rule
of nisi
 Factors relevant to the presumption of death granted in terms of the common-
law:
o Discretion of the court
o Factors considered by the court
 Circumstances surrounding the persons disappearance
 Length of time person is absent
 Age
 Health
o Provision of security
o Effect of presumption of death order
o Dissolution of marriage of missing person
 Discretionary capacity of the court:
 Most legal systems, presumption of death is linked to a fixed period- English law,
presumption of death granted after 7 years of opening of missing person’s case
 SA Law: discretion of court and not linked to a fixed period of absence
 Application judged on rules of evidence- prove that missing person is dead
 Case judged on its own set of facts
 Applicants prove on balance of probabilities that the missing person is presumable
dead
 Applicant must bring all relevant facts to the court to enable the court to consider all
probabilities
 Court don’t grant presumption of order easily
Case:
Re Beaglehole
Basis:
Application for presumption of death order
Facts:
Mr Beaglehole the testator, left money to beneficiary. Testators’ relatives had not heard
from him for over 15 years and no info was brought to local newspapers.
Applicant, and executor of the estate, applied for presumption of death order so the
testator’s estate may be divided amongst the remaining heirs
Court Decision:
Court held Mr Beaglehole did not work under dangerous conditions. Relatives had not heard
from him, nor had they made inquiries. The judge decided based on his age and working
conditions and following Dutch law in using his own discretion made the decision that the
court ruled against the application for a presumption of death order.

Factors the court considers with presumption of death orders:

 Absence for a period of time is not sufficient to grant a presumption of death order
 Facts of each case should be considered to determine whether a missing person can
be presumed dead or not
 Circumstances surrounding persons disappearance:
 Death is the cause of persons disappearance where the persons was last seen in
a dangerous situation, the presumption of death will be granted more readily
 Granted:
o Dempers and Van Ryneveld v SA Mutual Assurance Society- walk on the
beach
o In re Labistour- hunting expedition
o Ex parte Parker- ship sunk by enemy submarine
o Ex parte Holden- car found near waterfall with person suffering from
financial/emotional problems
 Refused:
o Ex parte Thesen’s Steamship Co Ltd- ship and crew missing for 6 months
but no evidence was brought up with what happened to the crew
o Ex parte James- gone swimming in sea, embezzled money and joined navy
under false identity

Length of time person has been absent:

 Absence not sufficient enough, it can become the decisive factor
 Court discretion is an important factor when considering the period of absence
 Ex parte verster- refused even after a 33-year absence
 Granted presumptions over a short period of time if strong probability of death is
possible
 Ex parte Dorward- person went bathing at natal coast
 Ex parte Williams- woman went for a swim and 6 months after her
disappearance the court granted the presumption

Age:
 Age of person at time of disappearance is NB
 The older the age the time application was made, the more readily the court will
grant the presumption
 Ex parte Rungasamy- court grant presumption for 84-year-old woman who
hadn’t collected pension for 4 years

Health:
 Missing person not in good health will be readily granted by court on a
presumption of death
 In re Kirby- missing for 18 years, suffered from asthma, had feeble health
 Ex parte Rungasamy- senile and bad health
 Refused to grant: Ex parte estate Russel- general state not good, parents died at
a young age and he did not have an intention to live to an old age, they
presumed him dead already
Provision of Security:
 Presumption of death order not granted, BUT missing persons estate administered
and divided amongst their heirs
 Heirs must provide security to the master of the high court in event missing person
reappears (cautio de restituendo)

Effect of presumption of death order:

 Presumption granted, this does not mean person is dead
 Rebuttable presumption person is dead
 if dead must be proven the court will serve as proof of the fact
 evidence to rebut= prove person is still alive
 presumption of death granted but person is still alive= original order set aside
 those who benefit from presumption must return benefits, or value of benefits
 forced return of benefits= condictio indebiti
 court with jurisdiction (domiciled at time of disappearance) has power to set aside a
death order

Dissolution of marriage of missing person:

 presumption of death doesn’t automatically dissolve marriage of missing person
 Court can at request of living spouse grant an order to dissolve marriage
o Court not bound to issue order but wont refuse to do so
o Court cannot on its own accord dissolve marriage
 Separate application brought to court for dissolution of marriage in terms of s.1 of
the Dissolution of Marriage on the Presumption of Death Act- marriage can be
dissolved through death of one or both spouses and through divorce
 Marriage is dissolved by death and cannot be set aside (revoked) should missing
person reappear alive

Presumption of death-Statutory-law:
 Person die under circumstances that raise doubt over cause of death being natural
 Statutory procedure- state take initiative(does not exclude fact a third party can
approach the court for a POD in terms of the common law procedure) over
application
o Procedure differs whether there:
 Is a body available
 Is not a body available
 Person has died of natural cause:
o Police officer investigates
 Findings reported to magistrate
 o Body available:
 Examined by district surgeon to determine COD
 Surgeon submits report on circumstances of death
o No body available:
 Surgeon sends circumstances of death to public prosecutor who
submits to the magistrate
o Magistrate opinion:
 Death = unnatural
 Inquest held to circumstances and cause of death
o Inquest: held only when
 Person has disappeared
 Died of natural causes
 Body is unavailable
o If inquest held due to body:
 Being destroyed
 No body found
 evidence prove beyond a reasonable doubt that death
occurred
o Magistrate:
 Record identity of deceased
 COD
 Date of death
 Death brough about through an offence
 No info: must be recorded as a fact
o Inquest reviewed by judge:
 If confirmed, same effect as Presumption of death order

 Presumption of death easier to obtain through common law as proof is on a balance

of probabilities not beyond a reasonable doubt as in statutory law
 Inquest Act: procedure does not affect persons right to apply to the court for an
order that the death of a person be presumed

Dissolution of marriage-Statutory procedure:

 Presumption of death of missing person:
o Presumption of death in terms of Inquest Act 58 of 1959- existing
marriage of missing person is automatically dissolved
o No separate application need be made
o Marriage dissolved by death from date of death of missing person
Presumption of death differences:
COMMON LAW PROCEDURE STATUTORY LAW PROCEDURE
- NATURAL AND
UNNATURAL DEATH
- ANY PARTY INTERESTED
CAN OPEN APPLICATION
- PROOF ON BALANCE OF
PROBABILITIES
- SEPARATE APPLICATION
TO DISSOLVE MARRIAGE
- ONLY UNNATURAL DEATH
- STATE OPEN APPLICATION
- PROOF BEYOND A
REASONABLE DOUBT
- MARRIAGE DISSOLVED
AUTOMATICALLY